Second court invalidates Obama recess appointment

WASHINGTON—A second federal appeals court has found that President Barack Obama exceeded his power when he bypassed the Senate to install a member to the National Labor Relations Board.

The ruling by the 3rd Circuit U.S. Court of Appeals in Philadelphia came on the same day that a Senate panel considered a slate of five nominees for full terms on the labor board. Senate Republicans said Thursday they would oppose two of the nominees—Sharon Block and Richard Griffin—because they currently sit on the board as recess appointments.

In its 2-1 decision ruling, the appeals court said that under the Constitution recess appointments can be made only between sessions of the Senate, not any time the Senate is away on a break.

The court's action mirrors a far-reaching ruling by the U.S. Court of Appeals in Washington, D.C., earlier this year. The Obama administration has appealed that ruling to the Supreme Court, arguing that such an interpretation would invalidate hundreds of recess appointments made by presidents over more than 100 years.

The latest ruling says Obama had no constitutional authority to install attorney Craig Becker to the labor board in 2010 while the Senate was adjourned for two weeks. Becker is no longer on the board.

The White House declined to comment Thursday.

Both rulings have threatened to throw the labor board, the Consumer Financial Protection Board and other federal agencies with recess appointees into chaos.

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If they stand, hundreds of decisions by these agencies could be thrown out, reaching back several years.

The narrow interpretation of a president's recess appointment power would also effectively make it impossible for the president to ever use that power, giving the Senate's ability to block administration nominees indefinitely.

Obama has made 32 recess appointments during his presidency, nearly all of which would be considered invalid under the interpretation of these courts. The rulings could also threaten the recess appointments of previous presidents. President George W. Bush made 141 such appointments in eight years.

On Capitol Hill, Tennessee Sen. Lamar Alexander, senior Republican on the Senate Health, Education, Labor and Pensions Committee, said he would not consider Block and Griffin because they refused to step down from the board after the District of Columbia Circuit ruled that they were unconstitutionally appointed. Block and Griffin said they wanted to abide by their oath to serve their country and argued that appeals courts have reached different conclusions about recess powers.

Democrats on the panel accused Republicans of obstructionism because the GOP and its allies in the business community have been unhappy with some of the union-friendly decisions issued by the board during Obama's administration. Unions warn that unless the nominees are confirmed soon, the board will be unable to function. It only has three members now, and the term of board chairman Mark Pearce expires in August.

In the 3rd Circuit case, the two-judge majority rejected the Obama administration's arguments that a Senate recess occurs any time lawmakers do not have a duty to attend, the Senate chamber is empty and the Senate cannot receive messages from the president.

"Defining recess in this way would eviscerate the divided-powers framework" of the Constitution, Judge D. Brooks Smith wrote in a 102-page decision. "If the Senate refused to confirm a president's nominees, then the president could circumvent the Senate's constitutional role simply by waiting until senators go home for the evening."

Smith, who was appointed by President George W. Bush, was joined in his opinion by Judge Franklin Stuart Van Antwerpen, an appointee of President Ronald Reagan.

A lengthy dissent came from Judge Joseph Greenaway Jr., who was appointed by Obama and joined the court in 2010. Greenaway said that under the majority's decision, the recess appointment power "is essentially neutered and the president's ability to make recess appointments would be eviscerated."

The strong dissent in the 3rd Circuit case makes it more likely the Supreme Court will decide to take up the issue when its new term begins in the fall, said Carl Tobias, a law professor at the University of Richmond.

"This situation will continue making it difficult for the NLRB and other agencies to operate," Tobias said.

The case was brought by New Vista, a New Jersey nursing and rehabilitative care center that argued its nurses were supervisors who were not allowed to form a union. The labor board ruled in favor of the union and New Vista appealed. The company argued that the board did not have enough validly appointed members to reach a decision because Becker was not a valid appointee.

The labor board has five seats and needs at least three sitting members to conduct business. At the time of the New Vista ruling, it had the minimum of three, but one member was Becker, the recess appointee.

Becker is no longer on the NLRB, but the current board also has only three members, two of whom are Obama recess appointees. More than a hundred companies have appealed NLRB decisions this year arguing that the board does not have enough validly appointed members to conduct business.

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